CALIFORNIA
The information provided is not
for commercial use it is intended only for informational use. There has been
no attempt to make a complete list of all or related statutes. There is no
guarantee of the completeness or accuracy of the information provided. Please Seek Professional Legal advice and visit the State’s official web
site and consult the Bound Volumes of the State’s Statutes for more
information.
PENAL CODE
261. (a) Rape is an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator, under
any of the following circumstances:
(1) Where a person is incapable, because of
a mental disorder or developmental or physical disability, of giving legal
consent, and this is known or reasonably should be known to the person
committing the act. Notwithstanding the
existence of a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5
of the Welfare and Institutions Code), the prosecuting attorney shall
prove, as an element of the crime, that a mental disorder or developmental or
physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the person or another.
(3) Where a person is prevented from
resisting by any intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably should have been known
by the accused.
(4) Where a person is at the time unconscious
of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious
of the nature of the act" means incapable of resisting because the victim
meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or
cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraud in fact.
(D) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a professional
purpose when it served no professional purpose.
(5) Where a person submits under the belief
that the person committing the act is the victim's spouse, and this belief is
induced by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.
(6) Where the act is
accomplished against the victim's will by threatening to retaliate in the
future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening
to retaliate" means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against
the victim's will by threatening to use the authority of a public official to
incarcerate, arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used in this paragraph, "public
official" means a person employed by a governmental agency who has the
authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be
a public official.
(b) As used in this section,
"duress" means a direct or implied threat of force, violence, danger,
or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which otherwise would not have been
performed, or acquiesce in an act to which one otherwise would not have
submitted. The total circumstances,
including the age of the victim, and his or her relationship to the defendant,
are factors to consider in appraising the existence of duress.
(c) As used in this section,
"menace" means any threat, declaration, or act which shows an
intention to inflict an injury upon another.
261.5. (a) Unlawful sexual intercourse is an act of
sexual intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor.
For the purposes of this section, a "minor" is a person under
the age of 18 years and an "adult" is a person who is at least 18
years of age.
(b)
Any person who engages in an act of unlawful sexual intercourse with a minor
who is not more than three years older or three years younger than the
perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of
unlawful sexual intercourse with a minor who is more than three years younger
than the perpetrator is guilty of either a misdemeanor or a felony, and shall
be punished by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison.
(d) Any person 21 years of age or older who
engages in an act of unlawful sexual intercourse with a minor who is under 16
years of age is guilty of either a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for two, three, or four years.
(e) (1) Notwithstanding any other provision
of this section, an adult who engages in an act of sexual intercourse with a
minor in violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of
unlawful sexual intercourse with a minor less than two years younger than the
adult is liable for a civil penalty not to exceed two thousand dollars
($2,000).
(B) An adult who engages in an act of
unlawful sexual intercourse with a minor at least two years younger than the
adult is liable for a civil penalty not to exceed five thousand dollars
($5,000).
(C) An adult who engages in an act of
unlawful sexual intercourse with a minor at least three years younger than the
adult is liable for a civil penalty not to exceed ten thousand dollars
($10,000).
(D) An adult over the age of 21 years who
engages in an act of unlawful sexual intercourse with a minor under 16 years of
age is liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district
attorney may bring actions to recover civil penalties pursuant to this
subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action shall be
deposited with the treasurer of the county in which the judgment was entered,
and the remainder shall be deposited in the Underage Pregnancy Prevention Fund,
which is hereby created in the State Treasury.
Amounts deposited in the Underage Pregnancy Prevention Fund may be used
only for the purpose of preventing underage pregnancy upon appropriation by the
Legislature.
(3) In addition to any punishment imposed
under this section, the judge may assess a fine not to exceed seventy dollars
($70) against any person who violates this section with the proceeds of this
fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's
ability to pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.
264. (a) Rape, as defined in Section 261
or 262, is punishable by imprisonment in the state prison for three, six, or
eight years.
(b) In addition to any punishment imposed
under this section the judge may assess a fine not to exceed seventy dollars
($70) against any person who violates Section 261 or 262 with the proceeds of
this fine to be used in accordance with Section 1463.23. The court shall, however, take into
consideration the defendant's ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the fine permitted under this
subdivision.
266c. Every person who induces any other person to
engage in sexual intercourse, sexual penetration, oral copulation, or sodomy
when his or her consent is procured by false or fraudulent representation or
pretense that is made with the intent to create fear, and which does induce
fear, and that would cause a reasonable person in like circumstances to act
contrary to the person's free will, and does cause the victim to so act, is
punishable by imprisonment in a county jail for not more than one year or in
the state prison for two, three, or four years.
As used in this section, "fear"
means the fear of physical injury or death to the person or to any relative of
the person or member of the person's family.
266f. Every person who sells any person or
receives any money or other valuable thing for or on account of his or her
placing in custody, for immoral purposes, any person, whether with or without
his or her consent, is guilty of a felony.
266j. Any person who intentionally gives,
transports, provides, or makes available, or who offers to give, transport,
provide, or make available to another person, a child under the age of 16 for
the purpose of any lewd or lascivious act as defined in Section 288, or who
causes, induces, or persuades a child under the age of 16 to engage in such an
act with another person, is guilty of a felony and shall be imprisoned in the
state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars
($15,000).
269. (a) Any person who commits any of the
following acts upon a child who is under 14 years of age and 10 or more years
younger than the person is guilty of aggravated sexual assault of a child:
(1) A violation of paragraph (2) of
subdivision (a) of Section 261.
(2) A violation of Section 264.1.
(3) Sodomy, in violation of Section 286,
when committed by force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person.
(4) Oral copulation, in violation of
Section 288a, when committed by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person.
(5) A violation of subdivision (a) of
Section 289.
(b) Any person who violates this section is
guilty of a felony and shall be punished by imprisonment in the state prison
for 15 years to life.
PENAL CODE
285. Persons being
within the degrees of consanguinity within which marriages are declared by law
to be incestuous and void, who intermarry with each other, or who being 14
years of age or older, commit fornication or adultery with each other, are
punishable by imprisonment in the state prison.
286. (a) Sodomy is
sexual conduct consisting of contact between the penis of one person and the
anus of another person. Any sexual
penetration, however slight, is sufficient to complete the crime of sodomy.
(b) (1) Except as provided in Section
288, any person who participates in an act of sodomy with another person who is
under 18 years of age shall be punished by imprisonment in the state prison, or
in a county jail for not more than one year.
(2) Except as provided in Section
288, any person over the age of 21 years who participates in an act of sodomy
with another person who is under 16 years of age shall be guilty of a felony.
(c) (1) Any person who participates in an
act of sodomy with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.
(2) Any person who commits an act of sodomy
when the act is accomplished against the victim's will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
victim or another person shall be punished by imprisonment in the state prison
for three, six, or eight years.
(3) Any person who commits an act of sodomy
where the act is accomplished against the victim's will by threatening to
retaliate in the future against the victim or any other person, and there is a
reasonable possibility that the perpetrator will execute the threat, shall be
punished by imprisonment in the state prison for three, six, or eight years.
(d) Any person who,
while voluntarily acting in concert with another person, either personally or
aiding and abetting that other person, commits an act of sodomy when the act is
accomplished against the victim's will by means of force or fear of immediate
and unlawful bodily injury on the victim or another person or where the act is
accomplished against the victim's will by threatening to retaliate in the
future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat, shall be punished by
imprisonment in the state prison for five, seven, or nine years.
(e) Any person who participates in an act
of sodomy with any person of any age while confined in any state prison, as
defined in Section 4504, or in any local detention facility, as defined
in Section 6031.4, shall be punished by imprisonment in the state
prison, or in a county jail for not more than one year.
(f) Any person who commits an act of
sodomy, and the victim is at the time unconscious of the nature of the act and
this is known to the person committing the act, shall be punished by
imprisonment in the state prison for three, six, or eight years. As used in this subdivision,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or
cognizant that the act occurred.
(3) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraud in fact.
(4) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraudulent representation that the sexual penetration served a professional
purpose when it served no professional purpose.
(g) Except as provided
in subdivision (h), a person who commits an act of sodomy, and the victim is at
the time incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by imprisonment in
the state prison for three, six, or eight years. Notwithstanding the existence of a conservatorship pursuant to
the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime, that a mental disorder or
developmental or physical disability rendered the alleged victim incapable of
giving consent.
(h) Any person who commits an act of
sodomy, and the victim is at the time incapable, because of a mental disorder
or developmental or physical disability, of giving legal consent, and this is
known or reasonably should be known to the person committing the act, and both
the defendant and the victim are at the time confined in a state hospital for
the care and treatment of the mentally disordered or in any other public or
private facility for the care and treatment of the mentally disordered approved
by a county mental health director, shall be punished by imprisonment in the
state prison, or in a county jail for not more than one year. Notwithstanding the existence of a
conservatorship pursuant to the Lanterman-Petris-Short
Act (Part 1 (commencing
with Section 5000) of Division 5 of the Welfare and Institutions Code),
the prosecuting attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged victim
incapable of giving legal consent.
(i) Any person who
commits an act of sodomy, where the victim is prevented from resisting by an
intoxicating or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the accused, shall
be punished by imprisonment in the state prison for three, six, or eight years.
(j) Any person who commits an act of
sodomy, where the victim submits under the belief that the person committing
the act is the victim's spouse, and this belief is induced by any artifice,
pretense, or concealment practiced by the accused, with intent to induce the
belief, shall be punished by imprisonment in the state prison for three, six,
or eight years.
(k) Any person who commits an act of sodomy,
where the act is accomplished against the victim's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport the victim
or another, and the victim has a reasonable belief that the perpetrator is a
public official, shall be punished by imprisonment in the state prison for
three, six, or eight years.
As used in this subdivision, "public
official" means a person employed by a governmental agency who has the
authority, as part of that position, to incarcerate, arrest, or deport
another. The perpetrator does not
actually have to be a public official.
(l) As used in subdivisions (c) and (d),
"threatening to retaliate" means a threat to kidnap or falsely
imprison, or inflict extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed
under this section, the judge may assess a fine not to exceed seventy
dollars ($70) against any person who violates this section, with the
proceeds of this fine to be used in accordance with Section 1463.23. The court, however, shall take into
consideration the defendant's ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the fine permitted under this
subdivision.
288. (a) Any person
who willfully and lewdly commits any lewd or lascivious act, including any of
the acts constituting other crimes provided for in Part 1, upon or with the
body, or any part or member thereof, of a child who is under the age of 14
years, with the intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of that person or the child, is guilty of a felony
and shall be punished by imprisonment in the state prison for three, six, or
eight years.
(b) (1) Any person who commits an act
described in subdivision (a) by use of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another person, is
guilty of a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(2) Any person who is a caretaker and
commits an act described in subdivision (a) upon a dependent person by use of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by imprisonment in
the state prison for three, six, or eight years.
(c) (1) Any person who commits an act
described in subdivision (a) with the intent described in that subdivision, and
the victim is a child of 14 or 15 years, and that person is at least 10 years
older than the child, is guilty of a public offense and shall be punished by
imprisonment in the state prison for one, two, or three years, or by
imprisonment in a county jail for not more than one year. In determining whether the person is at
least 10 years older than the child, the difference in age shall be measured
from the birth date of the person to the birth date of the child.
2) Any person who is a
caretaker and commits an act described in subdivision (a) upon a dependent
person, with the intent described in subdivision (a), is guilty of a public
offense and shall be punished by imprisonment in the state prison for one, two,
or three years, or by imprisonment in a county jail for not more than one year.
(d) In any arrest or prosecution under this
section or Section 288.5, the peace officer, district attorney,
and the court shall consider the needs of the child victim or dependent person
and shall do whatever is necessary, within existing budgetary resources, and
constitutionally permissible to prevent psychological harm to the child victim
or to prevent psychological harm to the dependent person victim resulting from
participation in the court process.
(e) Upon the conviction of any person for a
violation of subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional fine not to
exceed ten thousand dollars ($10,000).
In setting the amount of the fine, the court shall consider any relevant
factors, including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant derived any
economic gain as a result of the crime, and the extent to which the victim
suffered economic losses as a result of the crime.
Every fine imposed and
collected under this section shall be deposited in the Victim-Witness
Assistance Fund to be available for appropriation to fund child sexual
exploitation and child sexual abuse victim counseling centers and prevention
programs pursuant to Section 13837.
If the court orders a
fine imposed pursuant to this subdivision, the actual administrative cost of collecting
that fine, not to exceed 2 percent of the total amount paid, may be paid into
the general fund of the county treasury for the use and benefit of the county.
(f) For purposes of paragraph (2) of
subdivision (b) and paragraph
(2) of subdivision (c),
the following definitions apply:
(1) "Caretaker" means an owner,
operator, administrator, employee, independent contractor, agent, or volunteer
of any of the following public or private facilities when the facilities
provide care for elder or dependent persons:
(A) Twenty-four hour health facilities, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent
persons and postsecondary educational institutions that serve dependent persons
or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined
by Section 1402 of the Health and Safety Code, and residential
care facilities for the elderly, as defined in Section 1569.2 of the
Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with
developmental disabilities.
(L) A home health agency licensed in accordance
with Chapter 8 (commencing with Section 1725) of Division 2 of the
Health and Safety Code.
(M) An agency that supplies in-home
supportive services.
(N) Board and care facilities.
(O) Any other protective or public
assistance agency that provides health services or social services to elder or
dependent persons, including, but not limited to, in-home supportive services,
as defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities"
means licensed or unlicensed facilities that provide assistance with one or
more of the following activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent person" means any
person who has a physical or mental impairment that substantially restricts his
or her ability to carry out normal activities or to protect his or her rights,
including, but not limited to, persons who have physical or developmental
disabilities or whose physical or mental abilities have significantly
diminished because of age.
"Dependent person" includes any person who is admitted as an
inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2,
and 1250.3 of the Health and Safety Code.
(g) Paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c) apply to the owners, operators,
administrators, employees, independent contractors, agents, or volunteers
working at these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any act
prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision
(c).
(h) Paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse
of, or who is in an equivalent domestic relationship with, the dependent person
under care.
288.1. Any person
convicted of committing any lewd or lascivious act including any of the acts
constituting other crimes provided for in Part 1 of this code upon or
with the body, or any part or member thereof, of a child under the age of 14
years shall not have his or her sentence suspended until the court obtains a
report from a reputable psychiatrist, from a reputable psychologist who meets
the standards set forth in Section 1027, as to the mental condition of
that person.
288.5. (a) Any
person who either resides in the same home with the minor child or has
recurring access to the child, who over a period of time, not less than three
months in duration, engages in three or more acts of substantial sexual conduct
with a child under the age of 14 years at the time of the commission of the
offense, as defined in subdivision (b) of Section 1203.066, or three or
more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the
time of the commission of the offense is guilty of the offense of continuous
sexual abuse of a child and shall be punished by imprisonment in the state
prison for a term of 6, 12, or 16 years.
(b) To convict under this section
the trier of fact, if a jury, need unanimously agree only that the requisite
number of acts occurred not on which acts constitute the requisite number.
(c) No other felony sex offense involving
the same victim may be charged in the same proceeding with a charge under this section
unless the other charged offense occurred outside the time period charged
under this section or the other offense is charged in the
alternative. A defendant may be charged
with only one count under this section unless more than one victim is
involved in which case a separate count may be charged for each victim.
288a. (a) Oral
copulation is the act of copulating the mouth of one person with the sexual
organ or anus of another person.
(b) (1) Except as provided in Section
288, any person who participates in an act of oral
copulation with another person who is under 18 years of age shall be punished
by imprisonment in the state prison, or in a county jail for a period of not
more than one year.
(2) Except as provided in Section 288, any person over the age of 21 years who
participates in an act of oral copulation with another person who is under 16
years of age is guilty of a felony.
(c) (1) Any person who participates in an
act of oral copulation with another person who is under 14 years of age and more
than 10 years younger than he or she shall be punished by imprisonment in the
state prison for three, six, or eight years.
(2) Any person who commits an act of oral
copulation when the act is accomplished against the victim's will by means of
force, violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person shall be punished by imprisonment in the
state prison for three, six, or eight years.
(3) Any person who commits an act of oral
copulation where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person,
and there is a reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison for three, six,
or eight years.
(d) Any person who,
while voluntarily acting in concert with another person, either personally or
by aiding and abetting that other person, commits an act of oral copulation (1)
when the act is accomplished against the victim's will by means of force or
fear of immediate and unlawful bodily injury on the victim or another person,
or (2) where the act is accomplished against the victim's will by threatening
to retaliate in the future against the victim or any other person, and there is
a reasonable possibility that the perpetrator will execute the threat, or (3)
where the victim is at the time incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and this is known
or reasonably should be known to the person committing the act, shall be
punished by imprisonment in the state prison for five, seven, or nine
years. Notwithstanding the appointment
of a conservator with respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime described under paragraph (3),
that a mental disorder or developmental or physical disability rendered the
alleged victim incapable of giving legal consent.
(e) Any person who participates in an act
of oral copulation while confined in any state prison, as defined in Section
4504 or in any local detention facility as defined in Section 6031.4,
shall be punished by imprisonment in the state prison, or in a county jail for
a period of not more than one year.
(f) Any person who commits an act of oral
copulation, and the victim is at the time unconscious of the nature of the act
and this is known to the person committing the act, shall be punished by
imprisonment in the state prison for a period of three, six, or eight
years. As used in this subdivision,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(1) Was unconscious or
asleep.
(2) Was not aware, knowing, perceiving, or
cognizant that the act occurred.
(3) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraud in fact.
(4) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraudulent representation that the oral copulation served a professional purpose
when it served no professional purpose.
(g) Except as provided in subdivision (h),
any person who commits an act of oral copulation, and the victim is at the time
incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably should be
known to the person committing the act, shall be punished by imprisonment in
the state prison, for three, six, or eight years. Notwithstanding the existence
of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short
Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare
and Institutions Code), the prosecuting attorney shall prove, as an
element of the crime, that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral
copulation, and the victim is at the time incapable, because of a mental
disorder or developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing the act,
and both the defendant and the victim are at the time confined in a state
hospital for the care and treatment of the mentally disordered or in any other
public or private facility for the care and treatment of the mentally
disordered approved by a county mental health director, shall be punished by
imprisonment in the state prison, or in a county jail for a period of not more
than one year. Notwithstanding the
existence of a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting
attorney shall prove, as an element of the crime, that a mental disorder or
developmental or physical disability rendered the alleged victim incapable of
giving legal consent.
(i) Any person who
commits an act of oral copulation, where the victim is prevented from resisting
by any intoxicating or anesthetic substance, or any controlled substance, and
this condition was known, or reasonably should have been known by the accused,
shall be punished by imprisonment in the state prison for a period of three,
six, or eight years.
(j) Any person who commits an act of oral
copulation, where the victim submits under the belief that the person
committing the act is the victim's spouse, and this belief is induced by any
artifice, pretense, or concealment practiced by the accused, with intent to
induce the belief, shall be punished by imprisonment in the state prison for a
period of three, six, or eight years.
(k) Any person who commits an act of oral
copulation, where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate, arrest,
or deport the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by imprisonment in the
state prison for a period of three, six, or eight years.
As used in this subdivision, "public
official" means a person employed by a governmental agency who has the
authority, as part of that position, to incarcerate, arrest, or deport
another. The perpetrator does not
actually have to be a public official.
(l) As used in subdivisions (c) and (d),
"threatening to retaliate" means a threat to kidnap or falsely
imprison, or to inflict extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed
under this section, the judge may assess a fine not to exceed seventy
dollars ($70) against any person who violates this section, with the
proceeds of this fine to be used in accordance with Section
1463.23. The court shall, however, take
into consideration the defendant's ability to pay, and no defendant shall be
denied probation because of his or her inability to pay the fine permitted
under this subdivision.
289. (a) (1) Any
person who commits an act of sexual penetration when the act is accomplished
against the victim's will by means of force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another person shall
be punished by imprisonment in the state prison for three, six, or eight years.
(2) Any person who commits an act of sexual
penetration when the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person,
and there is a reasonable possibility that the perpetrator will execute the
threat, shall be punished by imprisonment in the state prison for three, six,
or eight years.
(b) Except as provided in subdivision (c),
any person who commits an act of sexual penetration, and the victim is at the
time incapable, because of a mental disorder or developmental or physical
disability, of giving legal consent, and this is known or reasonably should be
known to the person committing the act or causing the act to be committed,
shall be punished by imprisonment in the state prison for three, six, or eight
years. Notwithstanding the appointment
of a conservator with respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of
Division 5 of the Welfare and Institutions Code), the prosecuting attorney
shall prove, as an element of the crime, that a mental disorder or
developmental or physical disability rendered the alleged victim incapable of
giving legal consent.
(c) Any person who commits an act of sexual
penetration, and the victim is at the time incapable, because of a mental
disorder or developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing the act or
causing the act to be committed and both the defendant and the victim are at
the time confined in a state hospital for the care and treatment of the
mentally disordered or in any other public or private facility for the care and
treatment of the mentally disordered approved by a county mental health
director, shall be punished by imprisonment in the state prison, or in a county
jail for a period of not more than one year.
Notwithstanding the existence of a conservatorship pursuant to the
provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged victim
incapable of giving legal consent.
(d)
Any person who commits an act of sexual penetration, and the victim is at the
time unconscious of the nature of the act and this is known to the person
committing the act or causing the act to be committed, shall be punished by
imprisonment in the state prison for three, six, or eight years. As used in this subdivision,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or
cognizant that the act occurred.
(3) Was not aware, knowing, perceiving, or
cognizant of the essential characteristics of the act due to the perpetrator's
fraud in fact.
(4) Was not aware, knowing, perceiving, or cognizant
of the essential characteristics of the act due to the perpetrator's fraudulent
representation that the sexual penetration served a professional purpose when
it served no professional purpose.
(e) Any person who commits an act of sexual
penetration when the victim is prevented from resisting by any intoxicating or
anesthetic substance, or any controlled substance, and this condition was
known, or reasonably should have been known by the accused, shall be punished
by imprisonment in the state prison for a period of three, six, or eight years.
(f) Any person who commits an act of sexual
penetration when the victim submits under the belief that the person committing
the act or causing the act to be committed is the victim's spouse, and this
belief is induced by any artifice, pretense, or concealment practiced by the
accused, with intent to induce the belief, shall be punished by imprisonment in
the state prison for a period of three, six, or eight years.
(g) Any person who
commits an act of sexual penetration when the act is accomplished against the
victim's will by threatening to use the authority of a public official to
incarcerate, arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official, shall be punished
by imprisonment in the state prison for a period of three, six, or eight years.
As used in this subdivision, "public
official" means a person employed by a governmental agency who has the
authority, as part of that position, to incarcerate, arrest, or deport
another. The perpetrator does not
actually have to be a public official.
(h) Except as provided in Section
288, any person who participates in an act of sexual penetration with another
person who is under 18 years of age shall be punished by imprisonment in the
state prison or in the county jail for a period of not more than one year.
(i) Except as provided in Section
288, any person over the age of 21 years who participates in an act of sexual
penetration with another person who is under 16 years of age shall be guilty of
a felony.
(j) Any person who participates in an act
of sexual penetration with another person who is under 14 years of age and who
is more than 10 years younger than he or she shall be punished by imprisonment
in the state prison for three, six, or eight years.
(k) As used in this section:
(1) "Sexual penetration" is the
act of causing the penetration, however slight, of the genital or anal opening
of any person or causing another person to so penetrate the defendant's or
another person's genital or anal opening for the purpose of sexual arousal,
gratification, or abuse by any foreign object, substance, instrument, or
device, or by any unknown object.
(2) "Foreign object, substance,
instrument, or device" shall include any part of the body, except a sexual
organ.
(3) "Unknown
object" shall include any foreign object, substance, instrument, or
device, or any part of the body, including a penis, when it is not known
whether penetration was by a penis or by a foreign object, substance,
instrument, or device, or by any other part of the body.
(l) As used in subdivision (a),
"threatening to retaliate" means a threat to kidnap or falsely
imprison, or inflict extreme pain, serious bodily injury or death.
(m) As used in this section,
"victim" includes any person who the defendant causes to penetrate
the genital or anal opening of the defendant or another person or whose genital
or anal opening is caused to be penetrated by the defendant or another person
and who otherwise qualifies as a victim under the requirements of this section.
PENAL CODE
799. Prosecution for
an offense punishable by death or by imprisonment in the state prison for life
or for life without the possibility of parole, or for the embezzlement of
public money, may be commenced at any time.
This section shall apply in any case in
which the defendant was a minor at the time of the commission of the offense
and the prosecuting attorney could have petitioned the court for a fitness
hearing pursuant to Section 707 of the Welfare and Institutions Code.
800. Except as provided in Section 799,
prosecution for an offense punishable by imprisonment in the state prison for
eight years or more shall be commenced within six years after commission of the
offense.
801. Except as
provided in Sections 799 and 800,
prosecution for an offense punishable by imprisonment in the state prison shall
be commenced within three years after commission of the offense.
801.1. (a)
Notwithstanding any other limitation of time described in this chapter, prosecution
for a felony offense described in Section 261, 286, 288, 288.5, 288a, or 289, or Section 289.5, as enacted by Chapter 293 of
the Statutes of 1991 relating to penetration by an unknown object, that is
alleged to have been committed when the victim was under the age of 18 years,
may be commenced any time prior to the victim's 28th birthday.
(b) Notwithstanding any other limitation
of time described in this chapter, if subdivision (a) does not apply,
prosecution for a felony offense described in subparagraph (A) of paragraph (2)
of subdivision (a) of Section 290 shall be commenced within 10 years after
commission of the offense.
801.5.
Notwithstanding Section 801 or any other
provision of law, prosecution for any offense described in subdivision (c) of
Section 803 shall be commenced within four years after discovery of the
commission of the offense, or within four years after the completion of the
offense, whichever is later.
803. (a) Except as
provided in this section, a limitation of time prescribed in this
chapter is not tolled or extended for any reason.
(b) No time during which prosecution of the
same person for the same conduct is pending in a court of this state is a part
of a limitation of time prescribed in this chapter.
(c) A limitation of time prescribed
in this chapter does not commence to run until the discovery of an offense
described in this subdivision. This subdivision applies to an offense
punishable by imprisonment in the state prison, a material element of which is
fraud or breach of a fiduciary obligation, the commission of the crimes of
theft or embezzlement upon an elder or dependent adult, or the basis of which
is misconduct in office by a public officer, employee, or appointee, including,
but not limited to, the following offenses:
(1) Grand theft of any type, forgery,
falsification of public records, or acceptance of a bribe by a public official
or a public employee.
(2) A violation of Section 72, 118, 118a,
132, 134, or 186.10.
(3) A violation of Section 25540, of any
type, or Section 25541 of the Corporations Code.
(4) A violation of Section 1090 or 27443 of
the Government Code.
(5) Felony welfare fraud or Medi-Cal fraud
in violation of Section 11483 or 14107 of the Welfare and Institutions Code.
(6) Felony insurance fraud in violation of
Section 548 or 550 of this code or former Section 1871.1, or Section
1871.4, of the Insurance Code.
(7) A violation of Section 580, 581, 582,
583, or 584 of the Business and Professions Code.
(8) A violation of Section 22430 of the
Business and Professions Code.
(9) A violation of Section 10690 of the
Health and Safety Code.
(10) A violation of Section 529a.
(11) A violation of subdivision (d) or (e)
of Section 368.
(d) If the defendant is out of the state
when or after the offense is committed, the prosecution may be commenced as
provided in Section 804 within the limitations of time prescribed by this
chapter, and no time up to a maximum of three years during which the defendant
is not within the state shall be a part of those limitations.
(e) A limitation of time prescribed
in this chapter does not commence to run until the offense has been discovered,
or could have reasonably been discovered, with regard to offenses under Division
7 (commencing with Section 13000) of the Water Code, under Chapter 6.5
(commencing with Section 25100) of, Chapter 6.7 (commencing with Section 25280)
of, or Chapter 6.8 (commencing with Section 25300) of, Division 20 of, or Part
4 (commencing with Section 41500) of Division 26 of, the Health and Safety Code,
or under Section 386, or offenses under Chapter 5 (commencing with Section
2000) of Division 2 of, Chapter 9 (commencing with Section 4000) of Division 2
of, Section 6126 of, Chapter 10 (commencing with Section 7301) of Division 3
of, or Chapter 19.5 (commencing with Section 22440) of Division 8 of, the
Business and Professions Code.
(f) (1) Notwithstanding any other limitation
of time described in this chapter, a criminal complaint may be filed within one
year of the date of a report to a California law enforcement agency by a person
of any age alleging that he or she, while under the age of 18 years, was the
victim of a crime described in Section 261, 286, 288, 288a, 288.5, or 289, or
Section 289.5, as enacted by Chapter 293 of the Statutes of 1991 relating to
penetration by an unknown object.
(2) This subdivision applies only if all of
the following occur:
(A) The limitation period specified
in Section 800, 801, or
801.1, whichever is later, has expired.
(B) The crime involved substantial sexual
conduct, as described in subdivision (b) of Section 1203.066, excluding
masturbation that is not mutual.
(C) There is independent evidence that
corroborates the victim's allegation. If the victim was 21 years of age or
older at the time of the report, the independent evidence shall clearly and
convincingly corroborate the victim's allegation.
(3) No evidence may be used to corroborate
the victim's allegation that otherwise would be inadmissible during trial.
Independent evidence does not include the opinions of mental health
professionals.
(4) (A) In a criminal investigation
involving any of the crimes listed in paragraph (1) committed against a child, when
the applicable limitations period has not expired, that period shall be tolled
from the time a party initiates litigation challenging a grand jury subpoena
until the end of the litigation, including any associated writ or appellate
proceeding, or until the final disclosure of evidence to the investigating or
prosecuting agency, if that disclosure is ordered pursuant to the subpoena
after the litigation.
(B) Nothing in this subdivision affects the
definition or applicability of any evidentiary privilege.
(C) This subdivision shall not apply where
a court finds that the grand jury subpoena was issued or caused to be issued in
bad faith.
(g) (1) Notwithstanding any other limitation
of time described in this chapter, a criminal complaint may be filed within one
year of the date on which the identity of the suspect is conclusively
established by DNA testing, if both of the following conditions are met:
(A) The crime is one that is described in
subparagraph (A) of paragraph (2) of subdivision (a) of Section 290.
(B) The offense was committed prior to
January 1, 2001, and biological evidence collected in connection with the
offense is analyzed for DNA type no later than January 1, 2004, or the offense
was committed on or after January 1, 2001, and biological evidence collected in
connection with the offense is analyzed for DNA type no later than two years
from the date of the offense.
(2) For purposes of this section,
"DNA" means deoxyribonucleic acid.
(h) For any crime, the proof of which depends
substantially upon evidence that was seized under a warrant, but which is
unavailable to the prosecuting authority under the procedures described in
People v. Superior Court (Laff) (2001) 25 Cal.4th 703, People v. Superior Court
(Bauman & Rose) (1995) 37 Cal.App.4th 1757, or subdivision (c) of Section
1524, relating to claims of evidentiary privilege or attorney work product, the
limitation of time prescribed in this chapter shall be tolled from the
time of the seizure until final disclosure of the evidence to the prosecuting
authority. Nothing in this section otherwise affects the definition or
applicability of any evidentiary privilege or attorney work product.
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Revised 05/06